Expert Advice

Legal Procedures When Buying and Selling Property in India

Non-resident Indians can freely purchase and sell residential and commercial properties in India. A foreign citizen of Indian origin does not have to obtain RBI’s permission for purchasing and selling residential and commercial properties (other than agricultural/plantation land and farm house) for bonafide purposes provided the purchase is met through foreign exchange.

In such cases, a declaration has to be submitted to RBI within 90 days of the purchase.

Sale proceeds of not more than two residential properties and any number of commercial properties purchased by NRIs with foreign exchange funds and sold after at least 3 years can he repatriated after obtaining RBI’s specific permission for the same up to the purchase amount made with foreign exchange funds.

Permission from RBI will have to be sought within 90 days of the sale of the property.

Giving and receiving gift of properties are freely permitted for Indian citizens.

A foreign citizen of Indian origin does not have to obtain RBI’s permission for acquiring or disposing off gifts (up to two residential properties for receiving as gift) from or to a relative. (Charitable trust also for giving gifts)

The NRIs can freely let out their residential or commercial properties in India.

The rental income should however be routed through the NRO account. The rental income is freely repatriable from 1996-97 and is subjected to production of undertaking/certificate regarding payment of tax from the Income Tax authorities.

Non-resident Indians can avail housing loans from banks and housing finance institutions for an acquisition of one house/flat which is subjected to prescribed conditions.

At least 25% of the cost of acquisition should be met with foreign exchange funds.

The purchase consideration should be met either out of inward remittances in foreign exchange through normal banking channels or out of funds from NRE/FCNR accounts maintained with banks in India.

They are required to file a declaration in form IPI 7 with the Central Office of Reserve Bank at Mumbai within a period of 90 days from the date of purchase of immovable property or final payment of purchase consideration along with a certified copy of the document evidencing the transaction and bank certificate regarding the consideration paid.

LEGAL DOCUMENTS

Owning a house is an important thing in ones life. However, one needs to be careful while buying land/house to avoid falling into legal hassles. A lot of care is needed from the beginning- right from site seeing till the registration of the land. The legal status of the land is one of the first issues that you should address before confirming a property. The first thing is to find out the tenure, legal right of the holder of the land in government records. The tenure or possession right could be freehold, leasehold or may be held under a government grant or ‘sanad’. Freehold land is always most preferable. The seller should provide all the necessary documents to the buyer.

Title deeds

Tax receipt and bills

Encumbrance Certificate

Pledged land

Measuring the land

Buying land from NRI land owners

More than one owner

Agreement

Registration

Changing the title in Village office

Title deeds

The first step is to see the title deed of the land which you are going to buy. Confirm whether the land is in the name of the seller and that the full right to sell the land lies with only him and no other person. Don’t be satisfied with the Xerox copy of the title deed. Insist on seeing the Original Deed. Sometimes the seller may have taken a loan by pledging the original deed. It also needs checking whether the seller has permitted any entry/access to others through this land and whether any other fact has been suppressed/left undisclosed by the owner of the land. It is better to get the original deed examined by a lawyer. Along with the title deed, the buyer can also demand to see the previous deeds of the land available with the seller.

Tax receipt and bills

Property taxes which are due to the government or municipality are a first charge on the property and, therefore, enquiries must next be made in government and municipal offices to ascertain whether all taxes have been paid up to date. The owner should also possess the latest tax paid receipts, which you may inspect. Enquiries should also be made in various departments of the municipality to ascertain whether any notices or requisitions relating to the property have been issued and are outstanding and not yet complied with.

While inspecting the property tax receipt, it can be noted that there are two columns in the tax receipt. Make sure that the name entered in the owner’s column is correct. The second column will be for the name of the one who paid the tax. Sometime the owner may not have the tax receipt with him, in such cases, contact the village office with the survey no. of the land and confirm the original owner of the land. If you are buying a house along with the property, then the house tax receipt should also be checked. Also ensure that the electricity and water bills are up-to-date and if there any is balance payment to be made, ensure that it is made by the seller.

Encumbrance Certificate

Before buying any land or house, it is important to confirm that the land does not have any legal dues. It is available as a certificate called encumbrance from the sub registrar office where the deed has been registered, stating that the said land does not have any legal dues and complaints. The encumbrance certificate for the past thirteen years should be taken or for more clarification, you could demand 30 years encumbrance certificate to be checked. If you still have anymore doubts, you can take a Possession Certificate of the ownership of the particular land, which is available from the village office.

Pledged land

Some people may have taken loan from the bank by pledging their land. Ensure that the seller has paid back all the amounts due. Don’t get satisfied with the receipt of the payment made. A release certificate from the bank is necessary to release all the debts over the land legally. You could buy a land without the release certificate. But if you want to take a loan in future, the release certificate is a must.

Measuring the land

It is advisable to measure the land before registering the land in your name. Ensure that the measurements of the plot and its borders are accurate. You can do this with the help of a recognized surveyor. This will avoid lots of problems in the future. You could also take the Survey Sketch of the land from the Survey Department and compare for accuracy.

More than one owner

In some cases, the land will be owned by more than one people. So before registering, check if there is more than one owner, and if there is, get release certificate from the other people involved.

Buying land from NRI land owners

A person staying abroad can also sell his land in India by giving a Power of Attorney to a third person authorizing him the right to sell the land on his behalf. But in such cases, the power of attorney should be witnessed and duly signed by an officer in the Indian embassy in his province. There is no legal support for Power of attorney signed by a notary public.

Agreement

Once all the matters, financial/otherwise are settled between the parties, it is better to give an advance and write an agreement. This ensures that the owner does not change his word regarding the cost as well as make a sale to someone else who offers more money. The agreement should be written in 50 Rs stamp paper. The agreement should state the actual cost, the advance amount, the time span within which the actual sale should take place and how to proceed in case of any default from either parties, to cover the loss. The agreement can be prepared by a lawyer and should be signed by both the parties and two witnesses. After signing the agreement if one of the parties makes a default, the other party can take legal action against him.

Registration

The land can be registered in a sub registrar office, after preparing the title deed including all the relevant information. You could get the title deed written by a government licensed Document writer. Even lawyers can prepare the deed, but the document can only be computer printed or typed, not handwritten. Handwritten documents can be prepared by only those who hold the scribe license.

A draft should be prepared before actually writing the document in stamp paper. Make sure all the details mentioned are accurate. If there is incorrectness in the document after registering, a secondary document with the correct details has to be registered and depending on the incorrectness, the registration expenses will be repeated.

Make sure that the deed is registered within the time limit mentioned in the agreement. Original title deed, previous deeds, Property/House Tax receipts, Torence Plan (optional) etc plus two witnesses are needed for registering the property. Torence plan is a detailed plan of the property prepared by a licensed Surveyor which will have accurate details of the measurements including width, length, borders etc. This plan is needed only in some specific areas. For land costing more than five lakhs, the seller should submit either his Pan card or Form Number 16 during registration.

The expenses involved during registration include Stamp Duty, registration fees, Document writers/ lawyers’ fees etc. The stamp duty will depend on the cost of the property and varies from Municipality to Corporation to Panchayat. In Panchayat the stamp duty will be 4% of the cost of the land whereas in Municipality it is 5% and in Corporation 6%. Two percentages will be charged as the registration fees. Document writers fees also depend on the cost of the property and varies with individuals. There is a percentage prescribed by the government as Document writers fee and they cannot charge more than the prescribed limit.

After registration, the registered document will be received after 2-3 weeks, from the registrar office.

Changing the title in Village office

The whole legal procedure of buying the property will be complete only if the new owners name is added in the village office records. An application can be made along with the copy of the registered deed to the Village office to get this done.